With Certification Deadline Looming It’s A Good Time To Review Lead Based Paint Regulations

Since the Environmental Protection Agency’s (EPA) certification requirement goes into effect on April 22, 2010, this is a good time to review federal lead-based paint (“LBP”) requirements.  LBP regulations have evolved over time and apply to targeted housing and child-occupied facilities.  First, federal law mandated landlords to disclose information to residents regarding the hazards of lead-based paint. Then LBP regulations required residents to receive information on lead-based paint hazards before renovations were done.  Finally, next month, LBP regulations mandate certification for anyone performing renovation work involving LBP.  This article discusses federal LBP requirements.  Currently, there are no Colorado or local LBP requirements, but if there were, you would also be responsible for complying with them in addition to the federal requirements.

If you rent targeted housing, general LBP disclosure regulations apply to you. Targeted housing means any housing constructed prior to 1978.  Housing for the elderly or persons with disabilities (unless any child who is less than 6 years of age resides or is expected to reside in such housing) and 0-bedroom dwelling units are exempt.  Rental property found to be lead-based paint free by a certified inspector under a certification program is also exempt, and so are leases for less than 100 days.  Lease renewals are exempt if all required information has been previously disclosed, and you are not aware of any new information.

LPB regulations require lessors (including agents) of targeted housing to meet certain requirements. You must disclose to prospective residents in writing the presence of any known lead-based paint and/or lead-based paint hazards. You must also disclose any additional information available concerning the known lead-based paint and/or lead-based paint hazards, such as the basis for the determination that lead-based paint and/or lead-based paint hazards exist, the location of the lead-based paint and/or lead-based paint hazards, and the condition of the painted surfaces.  You must provide prospects with mandatory warnings regarding LBP, an EPA approved lead hazard information pamphlet, and any available records and reports regarding LBP.

Agents and property managers are responsible for complying with the law, and are legally liable for non-compliance.  Targeted housing (rentals) includes both single family and multi-family units.  Owners are required to make similar disclosures to any agent or property management company leasing the property for the owner.  If any required disclosure takes place after a resident has made an offer to lease, you must complete all disclosures prior to accepting a resident’s offer to lease, and allow the resident an opportunity to review the information and to amend their offer to lease.

You must also provide the resident with any available records or reports pertaining to lead-based paint and/or lead-based paint hazards, including any records or reports regarding common areas. This requirement also includes records or reports regarding other residential dwellings in multi-family target housing, provided that such information is part of an evaluation or reduction of lead-based paint and/or lead-based paint hazards in the target housing as a whole.

Leases for targeted housing must contain (either in the body of the lease or by way of an addendum or attachment) specific language (the required disclosures).  Disclosures should be handled right up front as part of the application process.  If you rent targeted housing, your application should contain the following or similar language.  Prior to signing a lease for the apartment, the Landlord is legally required to provide all Prospective Residents with DISCLOSURES OF INFORMATION ON LEAD-BASED and/or LEAD-BASED PAINT HAZARDS.  Prospective Resident acknowledges that Prospective Resident’s application will not be processed until such time that Prospective Resident acknowledges in writing that Prospective Resident has received such disclosures.  You should then provide the required disclosures to the prospect with the application, and only process the application after the prospect has returned an executed copy of the disclosures.

Failure to make LBP disclosures can result in significant legal liability.  First, if you fail to make the disclosures, the government can prosecute you criminally and fine you.  The resident can also sue you.  Federal law makes you liable for three times the resident’s damages, plus you are liable for the resident’s attorneys’ fees and costs.

LBP renovation rules apply to all renovations performed for compensation in target housing and child-occupied facilities.  Yes, your maintenance staff performs renovations for compensation.  The purpose of the renovation rules is to make sure that residents receive LBP information prior to the work being done, and ensure that individuals performing renovations involving LBP are properly trained, certified, and follow applicable work rules.

LBP renovation rules apply to target housing and child occupied facilities.  Target housing means pre-1978 housing.  Generally, child occupied facility means a building, or portion of a building, constructed prior to 1978, visited regularly by the same child, under 6 years of age, on at least two different days within any week (Sunday through Saturday period), provided that each day’s visit lasts at least 3 hours and the combined weekly visits last at least 6 hours, and the combined annual visits last at least 60 hours.

Unless the renovation qualifies for an exception, on or after April 22, 2010, no company may perform covered renovations without certification from the EPA.  All training to obtain certification must be accredited by the EPA.  Additionally, all renovations must be performed in accordance with the work practice standards set forth in the regulations.

Renovation means the modification of any existing structure, or portion thereof, that results in the disturbance of painted surfaces.  The regulations do not define what constitutes “the disturbance of painted surfaces”.  However, the regulations inclusion of specific jobs indicates that LBP painted surfaces will be disturbed with almost any job.  Specifically, renovation includes but is not limited to: the removal, modification or repair of painted surfaces or painted components (e.g., modification of painted doors, surface restoration, window repair, surface preparation activity (such as sanding, scraping, or other such activities that may generate paint dust); the removal of building components (e.g., walls, ceilings, plumbing, windows); weatherization projects (e.g., cutting holes in painted surfaces to install blown-in insulation or to gain access to attics, planing thresholds to install weather-stripping), and interim controls that disturb painted surfaces.

LBP free renovations as defined by the regulations are exceptions to LBP renovation regulations.  Generally, to meet this requirement, you will need a written determination by a certified inspector or risk assessor that the components affected by the renovation are LBP-free.  Emergency renovations are also exceptions.   Generally, emergency renovations are renovation activities that were not planned but result from a sudden, unexpected event (such as non-routine failures of equipment) that, if not immediately attended to, presents a safety or public health hazard, or threatens equipment and/or property with significant damage.

Renovation regulations also do not apply to minor repair and maintenance activities.  These activities are defined as activities that disrupt 6 square feet or less of painted surface per room for interior activities or 20 square feet or less of painted surface for exterior activities where no prohibited work practices are used and where the work does not involve window replacement or demolition of painted surface areas.  Minor repair activity includes minor heating, ventilation or air conditioning work, electrical work, and plumbing, as long as the surface area requirements are not exceeded.  Applying the minor repair and maintenance exception can be complicated. You should carefully review the full regulation before assuming the job falls under the minor repair exception.

The LBP renovation regulations also impose record keeping and disclosure requirements.  You or firms performing renovations must retain and, if requested, make available to EPA all records necessary to demonstrate compliance with the regulations for a period of 3 years following completion of any renovation. The 3-year retention requirement does not supersede longer obligations required by state or local law.  Currently neither Colorado, nor any local jurisdiction has any record keeping requirements.

LBP regulations impose disclosure, notification, and record keeping requirements.   While these requirements can vary depending on the type of work, location of work, and whether the work is being done on targeted housing or child occupied facilities, these requirements are generally as follows.  You have to provide the residents of the units the pamphlet Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools.  The pamphlet must be provided no more than 60 days before beginning renovation activities.  Additionally, you must provide proof of delivery of the pamphlet by one of the following methods.

One, obtain from the resident a written acknowledgment that the resident has received the pamphlet.  Two, certify in writing that a pamphlet has been delivered to the resident at the unit and that the firm performing the renovation has been unsuccessful in obtaining a written acknowledgment from the resident.  If you choose to follow this method, be aware that there are specific requirements for this certification.  Three, you can obtain a certificate of mailing at least 7 days prior to the renovation.  Finally, you should carefully review notification requirements for common area renovations and child occupied facilities because there are additional requirements.

Similar to violations of general LBP disclosures, the law imposes both criminal and civil fines and penalties for violation of LBP renovation regulations.  Because of the complexity of the regulatory requirements, and specifically the work rules, you should strongly consider hiring a qualified professional certified renovator to perform LBP renovations.  You should also address the LBP regulations in any renovation contract.  Specifically, all covered LBP renovation contracts should require the contractor to represent that they are currently trained and certified as required by all laws, rules, and regulations to perform LBP renovation work.  The contract should also make the contractor responsible for and complying with all LBP renovation requirements.  The contract should indemnify and hold you harmless for any and all damage resulting from the contractor’s failure to abide with or meet any LBP renovation law or regulation.  Finally, you should require the contractor have appropriate insurance to cover any damage for failure to meet such requirements, and verify that such insurance is in full force and effect.

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